No. 27066 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) IN THE MATTER OF an Appeal pursuant to section 135 of the Customs Act, S.C. 1986, c. 1. and IN THE MATTER OF an Action for declaratory relief BETWEEN: THE MINISTER OF NATIONAL REVENUE

Appellant (Defendant)

- and - GRAND CHIEF MICHAEL MITCHELL, also known as KANENTAKERON

Respondent (Plaintiff)

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THE MOHAWK COUNCIL OF KAHNAWAKE, THE ASSEMBLY OF FIRST NATIONS, THE UNION OF NEW BRUNSWICK INDIANS, THE ATTORNEY GENERAL OF NEW BRUNSWICK, THE ATTORNEY GENERAL OF MANITOBA, THE ATTORNEY GENERAL OF QUEBEC, THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Interveners RESPONDENT=S FACTUM HUTCHINS, SOROKA & DIONNE Gowling, Strathy & Henderson 245 St-Jacques, Suite 400 160 Elgin Street, Suite 2600 Montreal, Quebec Ottawa, Ontario H2Y 1M6 K1P 1C3 per: Peter W. Hutchins Anjali Choksi Tel: (514) 849-2403 (613) 233-1781 Fax: (514) 849-4907 (613) 563-9869 Counsel for the Respondent Ottawa Agent for the Respondent Grand Chief Kanentakeron Mitchell per: Micha J. Menczer Of Counsel for the Respondent per: Paul Williams Of Counsel for the Respondent

Deputy Attorney General of Canada Department of Justice 2199 - 284 Wellington Street Ottawa, Ontario K1A 0H8 per: Graham Garton, Q.C. Sandra Phillips Tel: (613) 957-4842 Fax: (613) 954-1920 Counsel for the Appellant Minister of National Revenue Mohawk Council of Kahnawake Legal Services P.O. Box 720 Mohawk Territory of Kahnawake Kahnawake, Quebec J0L 1B0 per: Murray Marshall François Dandonneau Tel: (450) 638-3011 Fax: (450) 638-3663 Counsel for the Intervener The Mohawk Council of Kahnawake Pitblado, Buchwald, Asper Lang Michener 2500 - 360 Main Street 300 - 50 O=Connor Street Winnipeg, Manitoba Ottawa, Ontario R3C 4H6 K1P 6L2 per: Jack R. London, Q.C. Martin Minuk Tel: (204) 956-0560 Tel: (613) 232-7171 Fax: (204) 957-0227 Fax: (613) 231-3191 Counsel for the Intervener Ottawa Agent for the Intervener The Assembly of First Nations The Assembly of First Nations Bear Law Office 99 Main Street Tobique Indian Reserve Maliseet, New Brunswick E7H 2X2 per: Henry J. Bear Counsel for the Intervener The Union of New Brunswick Indians The Attorney General of New Brunswick Gowling, Strathy & Henderson

160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Tel: (613) 233-1781 Fax: (613) 563-9869 Ottawa Agent for the Intervener The Attorney General of New Brunswick

The Attorney General of Manitoba Gowling, Strathy & Henderson 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Tel: (613) 233-1781 Fax: (613) 563-9869 Ottawa Agent for the Intervener The Attorney General of Manitoba

The Attorney General of Québec Noël & Associés

111 rue Champlain Hull, Québec J8X 3R1 Tel: (819) 771-7393 Fax: (819) 771-5397 Ottawa Agent for the Intervener The Attorney General of Québec

The Attorney General of British Columbia Burke-Robertson

70 Gloucester Street Ottawa, Ontario K2P 0A2 Tel: (613) 236-9665 Fax: (613) 235-4430 Ottawa Agent for the Intervener The Attorney General of British Columbia

PART I C STATEMENT OF FACTS

1. With the exception of the Introduction to his Statement of Facts, the Respondent accepts the

Statement of Facts provided by the Appellant with the following additions.

2. The Respondent is a Mohawk of Akwesasne. The Mohawks of Akwesasne are a community

of the Mohawk Nation and an Aboriginal people of Canada within the meaning of section 35(1) of

the Constitution Act, 1982.

3. On March 22, 1988 Grand Chief Mitchell entered Canada at the Cornwall International

Bridge, he stopped at the customs check point and notified officials there of the nature and quantity

of goods he was transporting across the border. (Reasons, Appellant=s Record, vol. 5, at 761)

4. The events of March 22, 1988 which gave rise to this appeal were prompted by the refusal of

the Government of Canada to recognize the Respondent=s right not to pay duty on goods brought

across the border. The Mohawks of Akwesasne sought to negotiate with Canada ways in which to

facilitate the exercise of their Aboriginal and treaty rights. Canada took the position that, in light of

the 1956 decision of this Court in R. v. Francis, no rights existed and suggested that this issue be

brought before the courts. (Reasons, Appellant=s Record, vol. 5, at 761)

5. In this case, the Respondent argued Atwo separate and distinct, but mutually confirming

sources of his right: an Aboriginal right and treaty rights@ (McKeown J., Reasons, Appellant=s

Record, vol 5, at 763). The basis for and content of the Aboriginal right must be determined and

analysed separately from the treaty right.

6. The trial in this matter lasted 35 days: the Respondent called nine witnesses, including three

expert witnesses, and the Appellant called two expert witnesses. The transcripts of the hearing are

over 5,000 pages long and over 14,000 pages of expert opinion and documents were filed with the

Court.

7. On the basis of this evidence, McKeown J. concluded that the Respondent had proved that he

had an existing Aboriginal right to cross the border with goods for personal and community use

including trade with other First Nations without paying duties and taxes on these goods. The

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Respondent was not successful in his claim for treaty rights and has not pursued that issue before

this Court. This appeal is only about his Aboriginal right.

8. Based upon the evidence led at trial by the parties, the trial judge made the following

findings of fact with respect to the Respondent's Aboriginal rights:

(a) The Respondent is a Mohawk of Akwesasne who is a descendant of the Mohawks of

the Mohawk valley. Akwesasne is part of the Mohawk nation and is part of the Six Nations

(Iroquois) Confederacy, which also includes the Oneida, Onondaga, Cayuga, Seneca and,

after 1722, the Tuscarora. The Respondent, Grand Chief Kanentakeron Mitchell, is a

faithkeeper who learned the traditional teachings and history of his people from his

grandfather who was also a faithkeeper. He has studied Iroquois history since his youth and

has held the title of faithkeeper for twenty-five years. (McKeown J., Reasons, Appellant=s

Record, vol. 5, at 771-772, 775-776,783);

(b) The Mohawks, whose homelands were in the Mohawk valley, prior to the arrival of

the Europeans regularly travelled over, used, controlled and exploited the area in the upper

St. Lawrence valley (including Akwesasne) which is now part of Canada. Trading and

travelling freely made Mohawk society what it was. The activities of the Mohawks centred

around travel, diplomacy and trade. This activity was integral and not incidental to Mohawk

society. The Iroquois trading network was extended through warfare as was European trade

at that time, and Aboriginal peoples should not be held to a different standard from

Europeans on the use of warfare to expand trading rights and territory. (McKeown J.,

Reasons, Appellant=s Record, vol. 5, at 780-782, 808-809, 795-800);

(c) The Mohawks travelled from their homeland in what is now the United States into

what is now Canada for trade related purposes prior to the arrival of the Europeans, with

their goods for personal and community use, without having to pay duty or taxes on those

goods. (McKeown J., Reasons, Appellant=s Record, vol. 5, at 810);

(d) The Respondent and the Mohawks of Akwesasne have established an Aboriginal

right to pass and repass freely across what is now the Canada-U.S. boundary with goods for

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personal and community use and for trade with other First Nations. (McKeown J., Reasons,

Appellant=s Record, vol. 5, at 810);

9. In concluding that trade was an integral part of Mohawk society and that the Mohawks

travelled freely across what is now the area bisected by the Canada-U.S. border to expand trading

territory, to obtain goods for the purposes of trade and to trade with other First Nations, McKeown J.

relied, inter alia, on the following evidence:

(a) An account from Harmen van den Bogaert, whose journals form the earliest recorded

European observations of Mohawk life and traditions, in which van den Bogaert observed

the arrival of Iroquois women, perhaps Oneida, carrying dried salmon and green tobacco

which they then sold in at least two Mohawk villages; van den Bogaert=s journal also

describes the presence of several kinds of European trade goods in the Mohawk villages;

archaeological evidence shows that European trade goods had been present since around

1550, some 60 years before the date of first contact in 1603. (McKeown J., Reasons,

Appellant=s Record, vol. 5, at 787-788);

(b) Evidence, from the Respondent's expert witnesses, Professor Johnston and Dr.

Venables, that the geographic position of the Mohawks enabled them to gain easy access to

the St. Lawrence valley and the lower Great Lakes country for the purposes of trade and

diplomacy. (McKeown J., Reasons, Appellant=s Record, vol. 5, at 788-789);

(c) The accepted academic consensus that a peace treaty of 1645 between the Iroquois

(including the Mohawks), the French and the Hurons and Algonquins (Aboriginal nations,

located to the north, within present-day Ontario and Quebec) which was negotiated at

Montreal, was a means to open access to trade between the parties. (McKeown J., Reasons,

Appellant=s Record, vol.5, at 792-794);

(d) Evidence from the report of the Appellant's expert witness, Dr. von Gernet, that, from

the 16th century on, there was small scale long distance trade between the Iroquois people

and that this trade was "vitally important to them". The Mohawks and the Iroquois travelled

freely into the territory which today constitutes Canada in order to engage in commercially

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motivated warfare and expand their control over trade. (McKeown J., Reasons, Appellant=s

Record, vol. 5, at 795-800);

(e) The Mohawks and other nations of the Iroquois Confederacy insisted that trading

rights be included in a Treaty in 1664, the first treaty to be signed by Aboriginal peoples in

North America with Europeans. (McKeown J., Reasons, Appellant=s Record, vol. 5, at 794-

795);

(f) Trade was a vital factor in the decision by a number of Mohawks to move from the

Mohawk valley and establish a permanent community in Caughnawaga/Kahnawake near

Montreal. The existence of an extensive trade network between Montreal and Albany during

the 17th and 18th centuries in which the major Iroquois participants were the Mohawks of

Mohawk valley and the Mohawks living in Kahnawake ─ it was Mohawks from these

particular communities who established a permanent settlement in Akwesasne between 1747

and 1755 C and evidence that the Mohawks of Akwesasne were directly involved in the

Montreal-Albany trade (McKeown J., Reasons, Appellant=s Record, vol. 5, at 783-784,800-

805);

(g) Oral traditions regarding Mohawk use of the area around Akwesasne and oral

traditions regarding guarantees made to the Iroquois of the right to cross the border with

goods. (McKeown J., Reasons, Appellant=s Record, vol. 5, at 784, 835);

(h) The continuing effort by the Mohawks of Akwesasne to participate in their border-

crossing activities throughout the 19th and 20th centuries. (McKeown J., Reasons,

Appellant=s Record, vol. 5, at 805-806).

10. The Appellant=s appeal to the Federal Court of Appeal was based upon substantially the same

issues that he invokes before this Court. The judgment of McKeown J. was upheld by the Court

except that the Court specified the geographic area where the right could be exercised.

11. With respect to the issue of whether the Aboriginal right includes the right to trade goods

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brought into Canada with other First Nations, the majority of the Federal Court of Appeal (Isaac C.J.

and Sexton J.A.) concluded that Athe trial judge properly considered the totality of the evidence of

pre-contact trade before coming to his conclusion@, and that Athe evidence relied on by the trial judge

is sufficient to ground his finding of pre-contact trade.@ (Sexton J.A., Reasons, Appellant=s Record,

vol. 5, at 854-855)

12. Noting that the issue at trial was not the existence of trading itself since Athe fact that trading

was an important part of the Iroquois Nations is well documented@, the majority pointed out that the

contested issue at trial was the geographic extent of the trade. On this issue, they concluded that Athe

trial judge made a full appraisal of the submissions of both parties on the existence of North-South

trade before reaching his conclusion.@ (Sexton J.A., Reasons, Appellant=s Record, vol. 5, at 855-

856)

13. The dissenting judge on this issue, Letourneau J.A., did not disagree with the trial judge=s

findings on the historical evidence relating to the Aboriginal right. He concluded however that the

wording of Article III of the Jay Treaty should be applied to limit the scope of the Aboriginal right to

goods brought in at Cornwall Island for the personal use or consumption or for collective use or

consumption by the members of the Mohawks of Akwesasne. Létourneau J.A. further held that the

trial judge had erred in interpreting the wording of Article III of the Jay Treaty to include non-

commercial scale trading. The majority disagreed with this approach, stating that Athe Jay Treaty

could not possibly be employed to limit the scope of the aboriginal right@ because Athe fact that

aboriginals may have been granted a more limited form of the aboriginal right in an international

treaty cannot serve to restrict the right which is protected by s. 35 of the Constitution Act, 1982.@

(Reasons, Appellant=s Record, vol. 5, Létourneau J.A., at 873-877, Sexton J.A., at 853-854, 857-

858)

14. The trial judge and all three judges of the Court of Appeal concluded that the Appellant had

not satisfied the burden of proving extinguishment in this matter since it "had not satisfied the onus

of demonstrating that the Customs Act exhibits the >clear and plain intention= necessary to extinguish

the aboriginal right".

Létourneau J.A., Reasons, para. 47, Appellant=s Record, vol. 5, at 878; McKeown

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J., Reasons, Appellant=s Record, vol. 5, at 844-846

15. While the judgment of the Court of Appeal clarified the geographic area over which the

Respondent=s Aboriginal right can be exercised, in essence the majority upheld all of the findings of

fact and law of the trial judge. Even the dissenting judge underlined in his judgment that: AI would

not want to conclude my analysis of the trial judge's decision without underlining the substantial

effort required from him in reviewing the voluminous, and often conflicting, evidence adduced

before him. Our intervention should not obscure the fact that his decision contains numerous factual

and legal findings that we endorse.@ (Létourneau, J.A., Reasons, Appellant=s Record, vol. 5, at 881-

882)

16. The Order of the Federal Court of Appeal varied paragraph 1 of the Order of McKeown J.

The final Order of the Appeal Court states:

1. the plaintiff as a Mohawk of Akwesasne resident in Canada has an existing aboriginal right which is constitutionally protected by sections 35 and 52 of the Constitution Act, 1982, when crossing the international border from New York to Ontario or Quebec, to bring with him to Canada, for personal use or consumption, or for collective use or consumption by the members of the community of Akwesasne, or for non-commercial scale trade with First Nation communities in Ontario or Quebec, goods bought in the State of New York without having to pay any duty or taxes to the government of Canada.

As the plaintiff has explained, the aboriginal right does not include the right to bring into Canada any form of firearm, restricted or prohibited drug, alcohol, plants and the like. The aboriginal right is also limited to the extent that any Mohawk of Akwesasne entering Canada with goods from the United States will be subject to search and declaration procedures at Canadian Customs.

2. insofar as any provisions of the Customs Act are inconsistent with the plaintiff's aboriginal right, they are, to that extent, of no force or effect.

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PART II C POINTS IN ISSUE

17. The Respondent submits that:

a. the Court of Appeal and the trial judge properly characterized the Aboriginal right

and correctly interpreted the historical and contemporary evidence and legal issues on the

Aboriginal practices which support the Aboriginal right;

b. the Court of Appeal correctly rejected the Appellant=s contention that the Aboriginal

right is incompatible with the sovereignty of the Crown;

c. the Court of Appeal and the trial judge correctly applied the law and the evidence to

hold that the Aboriginal right had not been extinguished; and

d. the majority of the Court of Appeal correctly determined (i) that the trial judge had

made a full appraisal of the evidence of both parties on this matter; (ii) that the trial judge

had made no palpable and overriding error in appreciating the evidence in relation to that

part of the Aboriginal right which relates to trade; (iii) that, in fact, the evidence of pre-

contact trade supported the findings of the trial judge on this matter; and, (iv) that Article III

of the Jay Treaty could not limit the scope of the Aboriginal right.

18. The Appellant=s arguments on this appeal raise an additional issue: can the Appellant, having

argued and accepted at trial that immigration matters were not an issue in this case, now insist that

the right at issue be characterized as inevitably including and as being contingent upon such matters?

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PART III C ARGUMENT

(A) Introduction

19. As the Respondent made clear in his Opening Statement at trial, his progress across the

Cornwall International Bridge on March 22, 1988 Awas ... not an act of defiance against Canadian

sovereignty; it could by no stretch of the imagination be coloured as a menacing act for the Canadian

state or its citizens@ and further APlaintiff and his people wish this Court to know that in

mounting his case he is not attacking Canadian sovereignty. They only seek judicial

confirmation of the reasonable limits to that sovereignty ... clearly dictated by the

Constitution of Canada.@

Opening Statement, Transcript, at 17-18, 49-50, Respondent=s Record, at 2-3, 6A-6B

20. The Appellant argues that the Respondent=s case constitutes a Trojan Horse menacing to and

incompatible with Canadian sovereignty. The case may look like one involving duty free entry of

goods says Appellant but in reality lurking inside is Aa mobility right of persons which includes as a

non essential element the claim to exemption@ (para. 19). In fact, it is the Appellant who seeks to

alter the characterization of the Aboriginal rights at issue by transforming it into something

C a right of access to Canada C not argued at trial or before the Federal Court of Appeal;

it is not part of the Order of the trial judge or the Court of Appeal.

21. From the outset of the trial all of the parties clearly understood that the issue in this case is

about, and only about, the right when entering Canada to bring in goods without paying duties or

taxes on those goods.

The plaintiff has characterized his claim as an aboriginal right to bring personal and community goods across the Canada-United States border, duty and tax free, and the right to trade those goods with other First Nations. (McKeown J., Reasons for Judgment (hereinafter "McKeown J., Reasons") Appellant=s Record, vol. 5, at 768)

22. It has always been recognized that the Aboriginal right in this case is not absolute and is

subject to reasonable limitations:

The plaintiff does not claim any right to bring across the border any form of firearm,

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restricted or prohibited drug, alcohol, plants or the like, nor do the facts in this case raise the issue of the importation into Canada of commercial goods for the primary purpose of competing in Canada=s commercial mainstream. Furthermore, the plaintiff recognizes that the Mohawks of Akwesasne, resident in Canada, will continue to be subject to search and declaration procedures at Canada Customs. (McKeown J., Reasons, Appellant=s Record, vol. 5, at 768)

23. The right at issue in this Appeal, as determined after adjudication by two levels of the

Federal Court of Canada, is clearly a right which applies when and if the Respondent enters into

Canada. When the right at issue is properly understood, the Appellant=s arguments on sovereignty

and characterization fall away.

(B) The Courts Below Correctly Characterized the Aboriginal Right and the Evidence

1. Characterization of the Aboriginal Right

24. The Respondent was born on St. Regis Island, in the territory of Akwesasne located within

Canada. The evidence led at trial demonstrates that, due to the unique geography of Akwesasne,

Grand Chief Mitchell crosses the international border into Canada several times each day.

Mitchell, Transcript, vol. 2, at 120,198-200, Respondent=s Record, at 7,14-16, map of Akwesasne, Exhibit P-11, Respondent=s Record, at 215

25. The Respondent=s entry into Canada on March 22, 1988 was uncontested by Canadian

authorities; it was never challenged by the Appellant either in the pleadings or at trial. The only

activity undertaken by the Respondent on March 22, 1988 which conflicted with a law of Canada

was his act of bringing goods into Canada without paying duties or taxes upon those goods. The

only governmental regulation which was impugned was the Customs Act. The Courts below

correctly characterized the Aboriginal right in light of these facts.

It is clear that the right claimed by the respondent is the right to be exempt from the payment of customs duties when crossing the Canadian border for goods that he would have bought in the United States. The whole debate at the hearing before the trial judge turned on and was related solely to the scope and impact of the Customs Act on the respondent's right not to pay duties.

Létourneau J.A., Reasons, Appellant=s Record, vol. 5, at 868; Mitchell, Transcript,

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vol. 2, at 270-271, Respondent=s Record, at 33-35

26. At trial both parties proceeded upon the basis that the Immigration Act was not engaged by

this proceeding. When counsel for the Appellant objected that a portion of the expert report of Joan

Holmes, a witness for the Respondent, had improperly dealt with >immigration issues=, the

Respondent agreed to dispense with that portion of the expert report.

Transcript, vol. 11, at 2044-2049; vol. 12, at 2063-2064, Respondent=s Record, at 91-96, 97-98

27. At trial the Appellant acknowledged that issues in relation to immigration were not relevant

to the pleadings. Having made his position clear at trial, it is not open to the Appellant now to insist

that the Aboriginal right at issue Ais dependent upon the establishment of an aboriginal right of free

passage across the international boundary@, and to accuse the Respondent of having improperly

pleaded his case.

Transcript, vol. 11, at 2044-2045, Respondent=s Record, at 91-92; Appellant=s Factum, paras. 19, 28;

28. The issues in this appeal do not involve C and do not affect C Canada=s ability to

control who or what enters the country. The Appellant=s reliance on this Court=s decision in

R. v. Simmons is misplaced. The issues in Simmons concerning the degree of personal

privacy the defendant could expect to receive at customs are not relevant to this appeal.

2. Principles of Appellate Review in this Matter

29. Many of the Appellant=s arguments relating to the characterization of the Aboriginal

right and the evidence supporting it, as well as those relating to the trial judge=s findings

with respect to the right to trade, are directed towards findings of fact by the trial judge

which have been confirmed through the judgment of the Court of Appeal. In a number of

cases dealing with Aboriginal or treaty rights, this Court has cautioned that appellate courts

should be extremely reluctant to interfere with the findings of fact made at trial.

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, paras. 78-80, Tab 3; see

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also R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 81, Tab 21; Ontario (A.G.) v. Bear Island Foundation, [1991] 2 S.C.R. 570, at 574-575, Tab 8

30. Based on his assessment of the testimony and the credibility of witnesses, McKeown J.

was required to make findings of fact which were the object of dispute between the parties.

This is clearly a case where the important policy of the protection of the autonomy and

integrity of the trial process should be applied.

3. The Evidence Supporting the Aboriginal Right

31. Given the inherent evidentiary difficulties in proving that a practice, custom or tradition was

integral to the distinctive culture of a First Nation before contact with Europeans, it would be

contrary to this Court=s judgment in Van der Peet (supra, para. 68, Tab 21) to require that historical

evidence as to activities be artificially limited to the particular right claimed, or that the right

claimed must reflect all the individual activities in evidence.

32. The Appellant=s arguments regarding the alleged dissimilarity between pre-contact practices

of the Respondent=s ancestors and the Aboriginal right at issue in this appeal ( paras. 48, 55) are

predicated upon the Appellant=s mistaken contention that, at its core, the right at issue is one of free

passage Awhich is not limited in any way@. There is no right of unregulated, free passage at issue.

(McKeown J., Reasons, Appellant=s Record, vol. 5, at 768)

33. The Appellant places great emphasis upon the fact that there were boundaries between

Aboriginal nations in pre-contact times, that those nations asserted control over their territory and

that they also recognized that those boundaries could change. The Appellant's arguments

regarding the relevance of boundaries between Aboriginal peoples in pre-contact times fail

to take into account the fact that there was no border in Mohawk territory in pre-contact

times and the trial judge so found. He concluded that the territory over which the Mohawks

travelled for trade and diplomacy, both before and after their contact with Europeans,

extended to both sides of the border between Canada and the United States and that

Akwesasne forms part of the territory "regularly exploited" by the Mohawks.

McKeown J., Reasons, Appellant=s Record, vol. 5, at 782; Map of Akwesasne,

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Mitchell, Transcript, vol. 2, at 198-202, Respondent=s Record, at 215, 14-18

34. The sovereign authority to establish an international border between Canada and the U.S. is

not the issue in this case. Rather, the issue is the effect of the Crown levying duties on the

movement of goods through the territory at issue. The Appellant argues that the payment of customs

duties at the border constitutes an aspect of the right. In the Respondent=s submission, such a

requirement constitutes an infringement of the right.

35. The Supreme Court has emphasized that the perspective of the Aboriginal peoples involved is crucial in assessing a claim for the existence of Aboriginal rights (R. v. Sparrow, [1990] 1 S.C.R. 1075, at 1112, Tab 20; Van der Peet, supra, para. 49, Tab 21). From the Aboriginal perspective, the establishment of borders as between colonial powers must be distinguished from recognition of boundaries as between Aboriginal peoples as explained by the Respondent's expert witness, Joan Holmes during cross-examination:

A. Well, the way that I understand it is this, you've painted a picture which is I would say very generally accurate, that there were boundaries between territories, that there were tolls between Indian Nations and that that existed before Europeans came to North American [sic] and it continues to exist afterwards. That part I think is clearly understood.

Now, the question of them having to pay tolls crossing European boundaries is another matter because I believe, and we see it pointed out in documents, that the view of the Indian Nations was that the boundary line between the European nations did not affect them.

In a sense what you have, if you want to picture it visually, is you have a map of North America that is made up of a patchwork of Indian Nation territories and then on top of that, after Europeans came to North America and as they continued to shift their own boundaries, on top of that aboriginal map, if you would, is a map that has boundaries between the European nations.

Holmes, Transcript, vol. 14, at 2472-2475, Respondent=s Record, at 136-138

36. The borders between European nations, from the time they were first drawn in North

America, served as a definition of the respective European zones of influence. Great Britain,

France and, later, the United States did not purport to impose the borders between them

upon Indian nations. The Appellant's expert witness, Donald Graves, confirmed that

European borders were not intended to affect the activities of the Indian nations.

Graves Report, Appellant=s Record, vol. 3, at 424; Graves, Transcript, vol. 20, at 3665, Respondent=s Record, at 159

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37. The Appellant=s argument with respect to tolls is irrelevant as the area in issue is territory

found by the trial judge to have been regularly used and exploited by the Mohawks for a variety of

purposes including trade. The evidence of payment of tolls cited by the Appellant and by his expert

witness, Dr. von Gernet, relates to the practices of the Algonquins who charged tolls to both the

French and the Huron, and with respect to the Montagnais, another First Nation. It cannot be

extrapolated to apply to the Mohawks. (Appellant=s Record, von Gernet Report, vol. 3, at

570-571; von Gernet,Transcript, vol. 27, at 5013-5022, Respondent=s Record, at 198-207)

38. Evidence of Algonquin and Montagnais practices cannot be used to delineate the Aboriginal rights of Mohawks. In Van der Peet this Court, confirming its earlier judgment in Kruger and Manuel, cautioned:

... the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right. (emphasis in the original)

Van der Peet, supra, paras. 69,130, Tab 21

39. The Mohawks certainly did not pay tolls to travel through their own traditional

territory, and there is no evidence in the record that the Mohawks ever paid tolls to any

Aboriginal nation. Not only did they not pay tolls, but as the trial judge found, the Mohawks

went to war against the Mahicans in order to end the Mahicans= attempts to force the

Mohawks to pay tribute. Tribute, tolls, and customs duties are each distinct concepts.

Tribute is a physical manifestation of political submission; a toll is a charge on a person for

the right to pass and customs duties are levied upon goods purchased outside a state=s

territory.

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McKeown J., Reasons, Appellant=s Record, vol. 5, at 797; Holmes, Transcript, vol. 14 at 2469; von Gernet, Transcript, vol. 27, at 5015; Respondent=s Record, at 132, 200

40. McKeown J. correctly concluded that evidence of regulation of boundaries in pre-contact

times could not (i) serve to define or deny the Aboriginal right, or (ii) signify that regulation of the

underlying activity by a Canadian law could not constitute an infringement of the Aboriginal right.

The fact that an activity was regulated in pre-contact times in no way indicates that such activity cannot constitute an aboriginal right. For instance, if it could be shown that the Mohawks regulated who amongst them could fish or how members of their people could fish, how could this be used to argue that those rights could not be infringed under Canadian law? (Reasons, Appellant=s Record, vol. 5 at 797)

41. The Appellant suggests (para. 56) that the Aboriginal right in this case is unlike other rights

such as fishing rights which he says can be regulated without denying their very existence. The

Aboriginal right in this case can be regulated without denying its existence. For example, it is

subject to search and declaration procedures.

42. As for the Appellant=s position that the Respondent could only prove the Aboriginal right at

issue by leading evidence of receipt of an exemption from a border impost of some kind, this is

tantamount to saying that an Aboriginal right to fish could only be established by leading evidence

of receipt of an exemption from fishing regulations in pre-contact times.

(C) The Respondent's Aboriginal Right Is Not Incompatible with the Sovereignty of the Crown

43. At the beginning of this new century, it is important to reflect upon the dramatic evolution in

the constitutional recognition of Aboriginal rights spearheaded by the jurisprudence of this Court. In

Sparrow this Court traced that evolution in the period prior to 1982:

For many years, the rights of the Indians to their aboriginal lands -- certainly as legal rights -- were virtually ignored. The leading cases defining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. ... It is clear, then, that s.35(1) of the Constitution Act, 1982, represents the culmination

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of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.

supra at 1103, 1105, Tab 20; see also R. v. Côté, [1996] 3 S.C.R. 139, para. 53, Tab 12

44. In Delgamuukw (supra, para. 1, Tab 3) this Court referred to the Aseries of cases in which it

has fallen to this Court to interpret and apply the guarantee of existing Aboriginal rights found in s.

35(1) of the Constitution Act, 1982@ and the resulting jurisprudential framework.

45. The Appellant=s arguments invoking Canadian sovereignty reflect an attitude and a time

when deference to government authority over the pre-existing rights of Aboriginal peoples rather

than reconciliation was the prevailing attitude. Led by this Court, the law has moved on.

46. The Appellant suggests that the practice relied upon by the Respondent, the practice of

transporting goods, free of duties and taxes, from what is now New York State into what are now the

provinces of Quebec and Ontario, is not reconcilable with Crown sovereignty (para. 30). This

practice of duty-free importation of goods must be reconcilable with Crown sovereignty as it occurs

often and increasingly under the Crown=s own regulatory regime and international arrangements.

(Létourneau, J.A., Reasons, Appellant=s Record, vol. 5 at 872-873)

1. Section 35 Constitution Act, 1982 Is the Relevant Sovereign Act

47. The Appellant defines sovereignty as the ability to exercise jurisdiction over a defined

territory and a permanent population. In Canada the exercise of that sovereignty is circumscribed

by the Constitution Act, 1867, which determines which level of government has jurisdiction over

subject matters, and now by the Constitution Act, 1982, which enshrines fundamental rights in the

Charter of Rights and Freedoms and in s. 35(1). Section 52, renders those rights supreme over any

inconsistent law.

48. In the Reference re: Secession of Québec this Court examined in detail the historical and

legal underpinnings of the Constitution of Canada and a number of its underlying

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constitutional principles. This Court linked the concepts of Asovereignty@ and Athe

Constitution@.

The Constitution is the expression of the sovereignty of the people of Canada. ... As this Court held in the Manitoba Language Rights Reference, supra, at p. 745, "[t]he Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government".

Reference re: Secession of Québec, [1998] 2 S.C.R. 217, para. 85, Tab 22

49. The Constitution Act, 1982 transformed the role of the Constitution in Canada:

This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen ... at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

Reference re: Secession of Québec, supra, para. 72, Tab 22

50. Sections 35 and section 52 of the Constitution Act, 1982 provide for constraints on Crown

power, reconciliation rather than Parliamentary supremacy and restoration of the honour of the

Crown. They provide the Courts with the constitutional tools to hold the Crown Ato a high standard

of honourable dealing with respect to the aboriginal peoples of Canada@. This Court in Sparrow

adopted the observation of Prof. Lyon that s. 35 "renounces the old rules of the game under

which the Crown established courts of law and denied those courts the authority to question

sovereign claims made by the Crown."

Sparrow, supra, at 1109, 1105-1106, Tab 20

51. In R. v. Côté Chief Justice Lamer stated that the entrenchment of Aboriginal ancestral and

treaty rights in s. 35(1) "has changed the landscape of Aboriginal rights in Canada". In R. v. Adams

and Côté the Supreme Court stressed the independence of the rights recognized and affirmed by s.

35(1) from any legal recognition or approval by governmental authorities.

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Côté, supra, paras. 51-52, Tab 12; Adams, [1996] 3 S.C.R. 101, para. 33, Tab 9

52. The Crown=s international treaty power is surely one of those Aessential conditions of

statehood@ invoked by the Appellant (para.1). For example, the Crown may enter into and has

entered into international treaties in which it commits itself to protect certain species of wildlife.

According to the Appellant, if the exercise of this aspect of sovereignty at least prior to 1982

conflicted with Aboriginal practices, those practices would have to be considered irreconcilable with

the Crown=s sovereignty. The Crown in Right of the United Kingdom entered into just such a treaty

with the United States of America in 1916, with respect to migratory birds, the 1916 Migratory

Birds Convention. Parliament enacted the Migratory Birds Convention Act to give effect to the

international Convention in Canada prohibiting the hunting of migratory birds during certain

times of the year and regulating certain other activities related to migratory birds and their

habitats. These prohibitions conflicted with, indeed were irreconcilable with, Aboriginal and

treaty rights to hunt.

R. v. Sikyea (1964), 43 D.L.R. (2d) 150 (N.W.T.C.A.) at 158, Tab 19, [1964] S.C.R. 642, Tab 18; The Queen v. George, [1966] S.C.R. 267, Tab 24

53. Although in cases decided prior to 1982 dealing with treaty rights of Aboriginal

persons to hunt migratory birds, it was held that treaty rights were not justiciable in the face

of conflicting federal regulatory provisions, as of 1982 what had been seen as irreconcilable

was reconciled through the application of sections 35 and 52 of the Constitution Act, 1982.

R. v. Flett, [1989] 4 C.N.L.R. 128 (Man.Q.B.), Tab 13, [1991] 1 C.N.L.R. 140 (C.A.), Tab 14; R. v. Arcand, [1989] 2 C.N.L.R. 110 (Alta.Q.B.), Tab 10

54. Furthermore, in clear confirmation that reconciliation of Crown sovereignty with pre-existing

Aboriginal societies and their activities is a two way street, (infra para. 59) Canada initiated

negotiations with the United States of America to amend the 1916 Convention to bring it into line

with the Aboriginal and treaty rights of the Aboriginal peoples of Canada as is explicitly recognized

in the Protocol=s preamble and the amendments brought to the Convention. Parliament repealed the

Migratory Birds Convention Act replacing it with the Migratory Birds Convention Act 1994, to

implement the amended Convention (s.4, s. 12(2)).

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Protocol Between Canada and the United States of America Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, signed on December 14, 1995, preamble, sec. II 4(a), Tab 34; Migratory Birds Convention Act 1994, at ss. 2(3), 4, Tab 33

55. The Appellant cites an 1892 U.S. Supreme Court decision (Ekiu) in support of his assertion

that a right of entry into a sovereign state not based on citizenship cannot be reconciled with the

state's right to control its borders (paras. 31-32) . This decision must be analysed in light of the

subsequent decision in McCandless which held that a Mohawk from Kahnawake had the right to

enter into and remain in the U.S. despite the fact that he was not an American citizen. AAmerican

Indians born in Canada@ are exempt from compliance with immigration requirements imposed by the

U.S. Immigration Act.

McCandless v. Diabo (1928), 25 F. (2d) 71 (3d Cir. C.A.), Tab 7; U.S. Immigration and Nationality Act, 8 U.S.C.S. ' 1359, Tab 36

56. In Watt v. Leibelt, the Aboriginal claimant, who was not a Canadian citizen, claimed that he

had an Aboriginal right to enter and remain in Canada. The Crown made similar arguments

regarding the irreconcilability of the Aboriginal right at issue in that matter as it makes in this

Appeal. In response to that argument the Court of Appeal stated:

Suffice it to say that while there is ample authority in international and common law for that proposition, a sovereign state may fetter itself as to the means by which, the circumstances in which, and the agencies of government by which, such power of control may be exercised. Canada has by its Constitution limited the exercise of governmental powers which may be inherent as a sovereign state. ... As long as the Constitution remains unamended, Canadian authorities are subject to this limitation on what would otherwise be an incident of sovereign power. In fact, in adopting section 35, Canada has exercised its sovereignty by establishing a hierarchy of rights exercisable in Canada: a hierarchy which can only be altered by another exercise of sovereign power, namely the amendment of the Constitution.

[1999] 2 F.C. 455, para. 15, see also para. 16, Tab 25

57. Contrary to what the Appellant argues (para. 46), the Federal Court of Appeal in Watt did not

view the Aboriginal right to remain in Canada Aas a rejection of Canadian sovereignty in favour of

aboriginal sovereignty@ as it found such a right to be contemplated by s. 35(1).

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58. At international law Parliament=s sovereignty with respect to Canada=s jurisdiction over its

borders is not unlimited in relation to the imposition of duties and taxes as demonstrated by the

Vienna Conventions on Diplomatic Relations and on Consular Relations under which Canada

cannot levy customs duties and taxes on diplomats who enter Canada.

Foreign Missions and International Organizations Act, Tab 31

2. Reconciliation of Aboriginal Rights and Crown Sovereignty

59. In Van der Peet, this Court determined that the Aboriginal rights recognized and affirmed in s. 35(1) are best understood as providing the Aconstitutional framework@ by which prior Aboriginal occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The Appellant attempts to explain this Court's statement in Van der Peet by suggesting that the process of reconciliation is a one-way street. Pre-existing Aboriginal societies and their rights that result, the Appellant contends, must give way to European sovereignty and be moulded in its image. This is not at all what Chief Justice Lamer was saying in Van der Peet. He was referring to a two-way street. Aboriginal societies and their rights, on the one hand, and Crown sovereignty, on the other, must accommodate one another.

The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined. . . . a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives. ...

The Canadian, American and Australian jurisprudence thus supports the basic proposition put forward at the beginning of this section: the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these purposes;...

Van der Peet, supra, paras. 42-43, 49-50, 30-31 (emphasis added), Tab 21; see also Delgamuukw, supra, paras. 148,186, Tab 3

60. When Lamer, C.J. spoke of reconciling Aboriginal rights and Crown sovereignty, he was not

assuming an automatic "reading-down" of Aboriginal rights to conform with Crown sovereignty.

Rather, he stated that A[t]rue reconciliation will equally place weight on each@ and that it is

ultimately through negotiated settlements involving "give and take on all sides", reinforced by the

judgments of the Supreme Court, that this reconciliation will be achieved. (Delgamuukw, supra,

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paras. 148, 184-186 (emphasis added), Tab 3)

61. The evidence at trial revealed that the Respondent, and his people, believe that with

Aboriginal rights come a responsibility to their community and their neighbours. Akwesasne sought

to reach agreements with Canada to recognize and facilitate the exercise of the Aboriginal rights

asserted in this case. Canada=s response was to deny the existence of those rights and to reject

initiatives for co-operative enforcement.

Mitchell, Transcript, vol. 2, at 229-231, 237-240, 292; Respondent=s Record, at 20-22, 24-27, 40

3. Disguised Arguments on Justification

62. In this case, the Appellant presented no evidence of justification at trial. The trial judge therefore correctly declined to "speculate about possible justifications for an infringement of Plaintiff's Aboriginal rights". In Badger Cory J. stated:

In the present case, the government has not led any evidence with respect to justification. In the absence of such evidence, it is not open to this Court to supply its own justification.

R. v. Badger, [1996] 1 S.C.R. 771, para. 98, Tab 11; McKeown J., Reasons,

Appellant=s Record, vol. 5, at 847

63. Now the Appellant is proposing to add a new element to the Sparrow test for establishing

Aboriginal rights under s. 35(1) by suggesting that a claimant must prove a practice is consistent

with Canadian sovereignty. Sparrow addresses the Appellant=s concerns through the justification

test which saves legitimate interference with s. 35 rights. The protection of the legitimate and

justified exercise of sovereign power does not require the invention of a new element for

establishing an Aboriginal right.

64. Many of the submissions about sovereignty presented by the Appellant are, in fact, simply

arguments through which, given his failure to lead evidence on justification under the Sparrow test

at trial, he now seeks to justify the application of the regulatory scheme of the Customs Act to the

exercise of the Aboriginal right. The Sparrow test on justification was available to the Appellant at

the time of trial. He elected not to invoke it. He cannot now introduce it by giving it a new name C

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Aincompatibility with Crown sovereignty@.

65. Moreover, the Appellant introduces new aspects of government activities not raised at trial

and for which no evidence was led. For example, at paragraphs 36 to 42 the Appellant raises

arguments concerning the importance of protecting tariff revenue and the integrity of the domestic

tax system. No evidence was led at trial in relation to the contemporary facts and policy concerns

set out in these paragraphs. This factual and speculative analysis cannot at this late stage be

introduced in the guise of legal argument.

66. Based upon pure speculation and not upon any of the facts which arise in this appeal, the

Appellant focuses on the effect that the recognition of the Aboriginal right in this case may have

upon hypothetical future cases (para.36) or cases already decided (para. 41). The evidence and facts

in this appeal relate to non-commercial scale trade and not to commercial-scale trade in issue in the

Appellant=s examples (footnotes 43, 119).

67. The rights declared by the Courts below recognize and accommodate the need for Canada to

control its borders. The manner in which the Respondent has explained his right at trial and the

Order of the Court of Appeal take into account the concerns of the Appellant by stipulating that the

Aboriginal right does not include the right to bring into Canada any restricted or prohibited goods

and are "limited to the extent that any Mohawk of Akwesasne entering Canada with goods from the

United States will be subject to search and declaration procedures at Canadian Customs". The

concerns expressed in the Jacques and Simmons case are not relevant. (McKeown J., Reasons,

Appellant=s Record, vol.5, at 768, 848; Sexton J.A., Reasons, Appellant=s Record, vol. 5, at 859;

Transcript, vol. 1, at 17-20, Respondent=s Record at 2-5)

68. This Court=s statements concerning justification acknowledge at least the possibility of a

prima facie incompatibility between Crown sovereignty and pre-existing Aboriginal activities.

Where the Crown is concerned about such incompatibility, the remedy is for the Crown to establish

that infringement of the exercise of the right is justified, not for the Court to deny the existence of

the right. (Sparrow, supra)

69. Ultimately, with respect to the Respondent's submissions on the threat to Canadian

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sovereignty posed by the declarations of the courts below, to paraphrase Hall J. in Calder, the

Appellant is fighting an issue that does not arise in the case and is resisting a claim never made in

the action. (Calder v. A.G. of B.C., [1973] S.C.R. 313, at 411, Tab 1)

(D) The Courts Below Correctly Concluded That the Aboriginal Right Had Not Been Extinguished

1. Laws Relating to Customs

70. As McKeown J. remarked, at trial the Crown did not argue extinguishment except to

a limited extent with respect to the Jay Treaty. Nor did the Crown lead evidence on the

complex customs regime and Parliament=s intention in enacting that regime. It was in the

Court of Appeal that the Appellant first argued that if the Aboriginal right ever existed, it was

extinguished by the Customs Act before the coming into force of s. 35(1) of the Constitution

Act, 1982.

McKeown J., Reasons, Appellant=s Record, vol. 5 at 844, 846; Watt, supra at 467, para. 13, Tab 25

71. Extinguishment should not be lightly implied. Parliament must have demonstrated a

Aclear and plain intention@ to extinguish the right in question. A general regulatory scheme

which may affect and control the exercise of Aboriginal rights even to the point of making

them unexercisable, does not extinguish them. It is the intent of a law and not its effect

which is relevant to this issue and the required intent is the intent to effect a permanent

settlement of the Aboriginal rights at issue. No evidence was led at trial on the intent to

extinguish.

Sparrow, supra, at 1097, 1098-1099, Tab 20; R. v. Gladstone, [1996] 2 S.C.R. 723, paras. 31, 38, Tab 16; see also Arcand, supra, Tab 10; Flett, supra, Tabs 13, 14

72. The repeal and lapse of the early enactments of the provinces of Upper and Lower Canada

invoked by the Appellant are not indicative of any intention to effect a permanent settlement of

Aboriginal rights: (i) lapse, or general repeal in the context of a consolidation cannot be said to

evince a positive clear and plain intention to effect a permanent settlement of rights; (ii) the rights

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provided for in those enactments were rights created by Art. III of the Jay Treaty, not Aboriginal

rights; and (iii) in any event, the colonial governments of Upper and Lower Canada did not have

legislative competence to effect a permanent settlement of Aboriginal rights.

Chippewas of Sarnia Band v. Canada (Attorney General), [1999] O.J. No. 1406 (Q.L.) (Ont. S.C.J.), paras. 344-358, 597, Tab 2; Easterbrook v. The King, [1931] S.C.R. 1010, at 214, Tab 4

73. The Court of Appeal agreed with the trial judge=s conclusions that the Appellant had not

satisfied the onus of demonstrating that the Customs Act exhibits the clear and plain intention

necessary to extinguish the Aboriginal right. The trial judge concluded:

The specific duties and taxes imposed from time to time under the Customs Act are not permanent features required to maintain Canadian sovereignty. They are not, as like the constitutional enactment in Horseman, supra, aimed at a permanent settlement of the legal rights of the aboriginal peoples. In effect they change over time or are eliminated completely with respect to certain goods. The plaintiff's right to cross the border with personal and community goods without paying duty is not incompatible with the regime of the Customs Act or cannot co-exist with and within that regime.

McKeown J., Reasons, Appellant=s Record vol.5 at 846, Létourneau J.A., Reasons, Appellant=s Record, vol. 5 at 878

74. The conclusions of the lower courts on this point are entirely in accord with the judgments of

this Court. In Sparrow, this Court held that the Aboriginal right had not been extinguished by

a permit system which was Asimply a manner of controlling the fisheries, not defining

underlying rights@. In Gladstone, this Court held that the Crown had only demonstrated

that it controlled the commercial fishery, not Athat it has acted so as to delineate the extent

of Aboriginal rights@. The Appellant admits, in paragraph 66 of his factum, that Ain the

present case, the Customs Act never recognized the alleged right, let alone sought to

control it, prior to 1982". Perforce, the Act has clearly not delineated the Aboriginal right; it

has simply controlled the exercise of the right.

Sparrow, supra, at 1099, Tab 20; Gladstone, supra, para. 34 (emphasis added), Tab 16; see also Van der Peet, supra, per McLachlin J. (as she then was), para. 289, Tab 21

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75. The existence of comprehensive regulation of an Aboriginal or treaty right, even to the point

of rendering the right unexercisable, does not extinguish that right. Prior to 1982, in R. v. Sikyea and

The Queen v. George this Court held that the Migratory Birds Convention Act was a complete bar to

the Aboriginal defendant=s treaty rights. In Sikyea the Court of Appeal (whose conclusions on this

point were explicitly adopted by this Court) held that:

I have quoted s. 5(1) of the Regulations which says that Ano person shall ... kill ... a migratory bird at any time except during the open season ...@. It is difficult to see how this language admits of any exceptions. When, however, we find that reference in both the Convention and in the Regulations to what kind of birds an Indian and Eskimo may Atake@ at any time for food, it is impossible for me to say that the hunting rights of the Indians as to these migratory birds, have not been abrogated, abridged or infringed upon.

Sikyea, supra, at 158, 162, Tab 19; S.C.R. at 646, Tab 18

76. With the entrenchment of Aboriginal and treaty rights through s. 35(1) of the

Constitution Act, 1982, the treaty right to hunt migratory birds at all times was determined

not to have been extinguished even though it had been subject to a regulatory scheme

which prohibited Aboriginal peoples, like all other people, from hunting most species of

migratory birds out of season.

Parliament could pass legislation that has the effect of suspending or interfering with the exercise of the right and in doing so may have breached the treaty. It did not in my opinion extinguish the right.

Arcand, supra, at 117, Tab 10; see also Flett, supra, at 131-132 (Leave to Appeal

refused [1991] 1 C.N.L.R. 140), Tab 13

77. The Appellant argues (para. 63) that the decisions of this Court on extinguishment in

Gladstone are not directly applicable since in these cases the fisheries regimes at issue Aexpressly

acknowledged and specially regulated the Aboriginal right@. On the contrary, there are very

direct parallels between the applicable government regulatory scheme in this appeal and

the regulatory scheme for commercial fisheries in Gladstone. According to the regulations

at issue in Gladstone, between 1927 and 1955 all persons, including Aboriginal people,

were prohibited from harvesting herring spawn for any purpose (Gladstone, paras. 31-34,

Tab 16). There was no Aspecially regulated Aboriginal right@.

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78. The right at issue in Gladstone was the right to fish for commercial purposes. In that case,

even after the regulations had been amended to grant special protection to the Aboriginal food

fishing right, this was done at the expense of the Aboriginal commercial fishery. One of the

Regulations at issue explicitly stated that the Aboriginal commercial fishery Ashould be prevented@.

The Regulation provided that Aboriginal persons attempting to sell fish caught pursuant to Indian

food fishing permits would be in violation of the regulations.

Gladstone, supra, para. 35, Tab 16

79. This Court concluded that the Regulations suggested that the government had two purposes

in enacting the amendment to the existing scheme: conservation, and protection of the Indian food

fishery:

The government attempted to meet these goals by making it clear that no special protection was being granted to the Indian commercial fishery and that, instead, the Indian commercial fishery would be subject to the general regulatory system governing commercial fishing in the province.

Gladstone, supra, para. 35, Tab 16

80. Nevertheless, this Court held that the explicit negation of the right to fish for commercial

purposes in favour of the right to fish for food was not enough to evince a clear and plain intention

to extinguish.

The government's purpose was to ensure that conservation goals were met, and that the Indian food fishery=s special protection would continue; its purpose was not to eliminate aboriginal rights to fish commercially. It is true that through the enactment of this regulation the government placed aboriginal rights to fish commercially under the general regulatory scheme applicable to commercial fishing, and therefore did not grant the aboriginal commercial fishery special protection of the kind given to aboriginal food fishing; however, the failure to recognize an aboriginal right, and the failure to grant special protection to it, do not constitute the clear and plain intention necessary to extinguish the right. (Gladstone, supra, para. 36, Tab 16)

81. For extensive periods of time during the late nineteenth and twentieth centuries Aboriginal

persons, including Mohawks of Akwesasne, were not assessed duty on their personal goods. And, as

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noted by the Federal Court of Appeal.

...local customs officials were not acting alone, but were following the instructions of high ranking officials. The evidence demonstrates that different levels of officials condoned and encouraged such treatment of the aboriginals with respect to the paying of duties. As late as 1951, the Deputy Minister of Justice believed that aboriginals had the right to bring in personal goods duty free.

Létourneau J.A., Reasons, Appellant=s Record, vol. 5 at 880-881; Holmes, Transcript, vols. 11, 12, at 2253-2284, Respondent=s Record, at 99-130

82. Contrary to what is argued by the Appellant (para. 71), the Court of Appeal=s conclusion on

this point does not suggest that the provisions of the Customs Acts became unenforceable due to

actions of government officials. However, the actions, or inactions, of those officials do indicate

that those entrusted with the application and enforcement of the Act did not believe that the Act was

inconsistent with preferential treatment with respect to the duty-free importation of goods by

Aboriginal peoples. The Court of Appeal relied upon these actions or inactions as a further factor

demonstrating that the right had not been extinguished. It is, of course, the entrenchment of those

rights in s.35(1) of the Constitution Act, 1982 which made the relevant sections of the Customs Act

unenforceable against the Respondent, not the actions of customs officials.

Létourneau J.A., Reasons, Appellant=s Record, vol. 5 at 878, para. 48

83. The Appellant argues (para. 61) that s. 22(1) of the Customs Act requires duties to be paid.

When read in the context of the entire Act, s. 22(1) requires only that duties be paid on dutiable

goods. The Act clearly contemplates circumstances where duties are not payable; therefore, for

example, the provisions establishing a duty to report and identify goods brought into Canada have

historically applied Awhether goods are dutiable or not@.

McKeown J., Reasons, Appellant=s Record, vol. 5 at 761, Létourneau J.A., Reasons, Appellant=s Record, vol. 5 at 867; Customs Act, 1970, ss. 9, 18, Tab 27 (see Appellant=s Authorities, Tabs 48-52 for historical precursors to these provisions of the Customs Act)

84. The Court of Appeal concluded that the Customs Act, 1970 is not an absolute bar to duty-free

entry of goods and pointed to the fact that s. 22(3) enables the Governor in Council to regulate the

application of duties. The Appellant argues that if s. 22(3) constitutes a broad power to regulate, the

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more specific powers to regulate duty-free entry of goods in the Customs Act and the Customs Tariff

would be redundant. The fact is that there have been multiple provisions over the years exempting

or granting remissions for the payment of duties as in the Customs Act, 1970, the Customs Tariff,

1970 and the Financial Administration Act, 1970. For instance, the Governor in Council may make

general remission orders pursuant to s. 22(3) Customs Act and s. 17 of the Financial Administration

Act, and more specific orders pursuant to s. 273 Customs Act and ss. 11, 12 and 19(1) of the Customs

Tariff. As Létourneau J.A. pointed out, this flexiblity in the regulatory scheme is integral to the

customs regime.

Customs Act, 1970, ss. 6, 22(3), Tab 27; Customs Tariff, 1970, s. 11, s. 20, Tab 28; Financial Administration Act, 1970, s. 17, Tab 30; Ballet Shoes Remission Order, amendment, 1980, Tab 26; Titanium Anode Remission Order No. 2, Amendment, 1982, Tab 35

85. The overall customs regime, which contemplates both (in the Appellant=s words) Alimited,

highly specific@ exemptions and general exemptions in the form of deductions, remissions,

drawbacks and refunds, is a flexible one. These flexible features have been continued in more recent

statutory enactments relating to customs duties. For instance, s. 101 of the Customs Tariff, R.S.C.

1985, c. 41 (3rd Supp.) as am. (since repealed and replaced), provides a general discretionary power

to grant relief from the payment of customs duties C Athe Governor in Council may ... by order,

remit duties@. Yet, notwithstanding this general power, the Governor in Council is enabled to

remove or reduce duties on goods imported from any country by way of compensation for

concessions granted by that country (s. 62) and to reduce or remove customs duties in respect of

specific materials (s. 68). The existence of specific powers of remission does not preclude the

general power or render it nugatory.

Customs Tariff, 1985, s. 62, s. 66, s. 68, s. 77, s. 101 as am., Tab 29; Akwesasne Residents Remission Order, Appellant=s Authorities, Tab 42

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86. In Delgamuukw this Court, in examining the issue of whether provincial laws of general

application could extinguish Aboriginal rights, held that laws evincing a sufficiently clear and plain

intention to extinguish Aboriginal rights would have to be laws clearly contemplating "Indians and

Indian lands" or Aboriginal rights or title. The Customs Act is no such law.

While the requirement of clear and plain intent does not, perhaps, require that the Crown "use language which refers expressly to its extinguishment of aboriginal rights" (Gladstone, supra, at para. 34) the standard is still quite high. My concern is that the only laws with the sufficiently clear and plain intention to extinguish aboriginal rights would be laws in relation to Indians and Indian lands.

Delgamuukw, supra, para. 180 (emphasis added), Tab 3

87. While the Chief Justice was referring to provincial laws of general application, this does not

detract from the fact that this Court has held that the law must express specific intention in relation

to Indians or Indian lands. There is no reason for a lower threshold to be applied to federal laws.

Consistent with the jurisprudence from this Court, such specific intention must demonstrate that the

Crown intended to Adefine underlying rights@ or to Adelineate@ those rights or to provide for Aa

permanent settlement@ for those rights.

88. The Appellant=s claim (para. 73) that Aboriginal persons are only exempt from taxes

pursuant to statute relies upon judgments which deal solely with interpretation of provisions of the

Indian Act; no arguments with respect to Aboriginal rights were before those courts. The allegation

that statutory exemptions are the only manifestation of Aboriginal rights to tax exemption ignores

the effect of s. 35(1) and the jurisprudence of this Court which suggest no such requirement.

89. In essence, the Appellant's argument on extinguishment is that if an Aboriginal right is not

specifically dealt with or regulated in a statute it must not exist or it must cease to exist by reason of

such statute. Despite the Appellant=s disavowal (para. 64), this is a perverse way of presenting the

argument, long discarded by this Court, that for an Aboriginal right to exist it must be recognized by

the Crown.

Calder, supra, at 390, 392, 404, Tab 1; Guerin v. The Queen, [1984] 2 S.C.R. 335 at 376-379, Tab 5; Sparrow, supra, at 1101, Tab 20; Delgamuukw, supra, para. 180, Tab 3; Adams, supra, para. 33, Tab 9; Côté, supra, para. 52, Tab 12

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2. This Court=s Conclusions in Francis Are No Bar to the Respondent=s Aboriginal Right

90. The Mohawk perspective on the relationship between Aboriginal rights and treaty rights was related in testimony by former Grand Chief Roundpoint:

The source of those rights, in my view, do not stem from any treaty or any written word as put down by any European person. These rights are there since we have been here since time immemorial. It is a right that I have been born with, one that I have passed to my children. It is something that was given to me by my forefathers.

Roundpoint, Transcript, vol. 10 at 1890, Appellant=s Record, vol. 1 at 114

91. The Appellant relies upon Kerwin J.=s judgment in Francis v. The Queen to argue that s. 49

of the 1949 Act to Amend the Income Tax Act and the Income Tax War Act was held to have

extinguished rights under Article III of the Jay Treaty. From this he draws the remarkable

conclusion (para. 76) that Aif the alleged treaty right has been extinguished, then of course

the aboriginal right, which amounts to the same thing, met the same fate@. As the trial

judge acknowledged, the Respondent argued at trial on the basis of two separate and

distinct sources of rights. The Courts have recognized the distinct and independent

character of Aboriginal rights and treaty rights. Absent specific treaty language, Aboriginal

rights are not subsumed in treaty provisions. No such specific language is found in Article

III. (Simon v. The Queen , [1985] 2 S.C.R. 387 at 401-402, Tab 23)

92. This Court=s ruling in Francis is only relevant to a treaty based right. No Aboriginal right

was pleaded in Francis and the Court did not address the matter of Aboriginal rights. The judgment

has no application to the matter of Aboriginal rights.

93. Furthermore, Francis does not stand for the proposition that rights under Art. III have been extinguished. Kerwin J. held that rights under Article III had not been incorporated into Canadian law and were therefore not justiciable in Canadian courts. As the decision concluded that there were no rights at issue under Art. III of the Jay Treaty, the judgment cannot possibly constitute authority for the proposition that s. 49 extinguished those rights. Moreover, the references to s. 49 in Kerwin J.=s decision relied upon by the Appellants were not adopted by the majority; only three of the seven judges in Francis made any reference to s. 49 of the 1949 Act. In any event, s. 49 was directed only to rights arising from pre-Confederation statutes in the context of Newfoundland entering Confederation and could not possibly have addressed any treaty rights under Article III of the Jay Treaty, or Aboriginal rights.

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Francis v. The Queen, [1956] S.C.R. 618 at 621-622, Appellant=s Authorities, Tab 9

94. Finally, section 49 contemplates continuing tax exemptions through federal legislation. Even

if that section were applicable, which is denied, it does not meet the high standards the Courts have

established to demonstrate a clear and plain intention to extinguish Aboriginal rights.

(E) The Aboriginal Right Includes the Right to Bring Goods Into Canada Duty-Free For the Purposes of Non-Commercial Scale Trade

95. The Appellant=s arguments contesting the trial judge=s conclusions that the Respondent=s

Aboriginal rights includes the right to bring goods into Canada duty free for the purposes of non-

commercial scale trade with other First Nations focus only on certain specifics, including the

assessment of credibility and expertise of certain expert witnesses, the trial judge=s interpretation of

specific pieces of evidence, and the trial judge=s conclusions on the evidence in comparison to those

reached in R. v. Adams.

96. The trial judge carefully reviewed and analysed an enormous amount of evidence before

reaching his conclusion on this point. The majority of the Court of Appeal concluded that

McKeown J. had Aproperly considered the totality of the evidence of pre-contact trade before coming

to his conclusion,@ that Athe evidence relied on by the trial judge is sufficient to ground his finding

of pre-contact trade@ and that he had made no palpable and overriding error. (Sexton J.A., Reasons,

Appellant=s Record, vol. 5 at 855-856)

97. Under reserve of this general response, the Respondent addresses below the Appellant=s

selective reading of the evidence.

98. The Appellant contends (para. 81) that there was no element of trade with other First Nations

in the intended use of the imported goods because, other than the motor oil which was

destined for commercial sale in Akwesasne, the goods were given as a gift to the Mohawk

community of Tyendinaga. However, the evidence clearly demonstrated, and the trial judge

found, that the giving of gifts to Tyendinaga signified a renewed commitment to trade; when

a trade agreement is reached with communities of the Iroquois Confederacy gifts are

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exchanged to seal the agreement. (McKeown J., Reasons, Appellant=s Record, vol. 5 at

762)

99. While McKeown J. held that the wording of Article III of the Jay Treaty reinforces the

characterization of the Aboriginal right as one that is exercised on a non-commercial scale, it is clear

that he employed the wording of that Article as Areinforcement@ for the characterization of the

Aboriginal right which he had adopted pursuant to the evidence and not as the source of the right or

as a limitation of the right.

I have already determined that the Jay Treaty is not a "treaty" within the meaning of section 35(1) of the Constitution and therefore does not serve as an independent source of a constitutionally protected right for aboriginal peoples. It follows therefore, that the Jay Treaty, because it is not enforceable in Canada cannot serve as a limitation on a constitutionally protected aboriginal right. If the Jay treaty is not a treaty within the meaning of section 35(1) of the Constitution, partly because it is a treaty between two sovereign powers, one of which is not the First Nations, how can its wording be an indication of the content of the aboriginal right being claimed in this case?

McKeown J., Reasons, Appellant=s Record, vol. 5 at 843 (emphasis added)

100. McKeown J., correctly interpreted the scope of Article III of the Jay Treaty. However, the

analysis of the Aboriginal right put forward by the Appellant and by Létourneau J.A. renders the

Aboriginal right dependent upon and qualified by Article III of the Jay Treaty. With respect,

Létourneau J.A. simply substituted his own interpretation for that adopted by the trial judge without

explaining why the trial judge had erred in law in adopting his interpretation. The correct analysis is

that of the majority of the Court of Appeal.

Létourneau, J.A. Reasons, Appellant=s Record, vol. 5 at 873-877

101. The majority of the Court of Appeal stated that Ait is important to emphasize that the finding

that the aboriginal right includes the right to duty-free trade is not dependent on his [McKeown J.=s]

conclusion that Article III of the Jay Treaty grants the identical right.@ The majority went on to

analyse in detail the trial judge=s reasons on this matter:

With respect, I cannot agree that the trial judge improperly relied on his interpretation of the Jay Treaty to support his finding that the aboriginal right

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included the right to duty-free trade. As seen above, the Jay Treaty is not addressed in his initial analysis of the aboriginal right. After finding that the respondent's aboriginal right included the right to duty-free trade, the trial judge turned his mind to the issue of treaty rights. It is not until after this discussion, at page 98, that he concluded that the wording of the Jay Treaty reinforced his characterization of the aboriginal right. It should be noted that these comments were made in obiter while addressing the relationship between aboriginal rights and treaty rights. As has been illustrated above, at this point in his judgement the trial judge has already recognized the existence of the aboriginal right to duty-free trade.

Sexton J.A., Reasons, Appellant=s Record, vol. 5 at 857-858 (emphasis added)

102. The Appellant commits two errors when, in paragraphs 82-83, he seeks to limit the

Respondent=s Aboriginal right to only those activities which can be supported by the wording of the

Jay Treaty. First, the Appellant seeks to narrow the interpretation of Article III which the trial judge

had adopted based on the evidence of the Respondent=s experts (McKeown J., Reasons, Appellant=s

Record, vol. 5 at 819-820,843). Second, he employs those narrowed terms of Article III to limit the

scope of the Aboriginal right. Yet, as noted by Sexton J.A., it has never been argued in this case that

Article III limited or effected a partial extinguishment of the Aboriginal right. In any event, as

emphasized by the Court of Appeal, any such argument must fail:

In my view, the Jay Treaty could not possibly be employed to limit the scope of the aboriginal right. As the trial judge rightly points out at page 98, the Jay Treaty "cannot serve as a limitation on a constitutionally protected aboriginal right". Once it has been determined that the test for the existence of an aboriginal right established in Van der Peet, supra, has been satisfied, this right is protected by the Constitution unless the right has been extinguished. In these proceedings, the appellant has not argued that the Jay Treaty or its implementing legislation extinguished the aboriginal right. In any event, it is clear that this argument would have failed: the fact that aboriginals may have been granted a more limited form of the aboriginal right in an international treaty cannot serve to restrict the right which is protected by s. 35 of the Constitution Act, 1982.

Sexton J.A., Reasons, Appellant=s Record, vol. 5 at 857-858

103. The Appellant argues that there was no Adirect evidence@ which established that the

Mohawks traded with First Nations in what is today Canada (para. 84). The Appellant=s assumption

is that the only relevant evidence on this point must pre-date contact. This assumption is contrary to

the principles established by this Court. McKeown J.'s analysis and use of the evidence is in

accord with the principles elaborated upon by the Chief Justice in Delgamuukw:

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... [G]iven that many aboriginal societies did not keep written records at the time of contact or sovereignty, it would be exceedingly difficult for them to produce (at para. 62 [Van der Peet]) "conclusive evidence from pre-contact times about the practices, customs and traditions of their community". Accordingly, I held that (at para. 62 [Van der Peet]):

The evidence relied upon by the applicant and the courts may relate to aboriginal practices, customs and traditions post-contact; it simply needs to be directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact.

Delgamuukw, supra, para. 83 (emphasis in the original), Tab 3

104. The Appellant's arguments on Adirect evidence@ ignore the importance of the 1645

Treaty between the Iroquois including the Mohawks, the French and the Hurons regarding

the type of trading activities which are at issue in this appeal. The trial judge found that the

1645 Treaty constitutes "the best description available of what Iroquois treaty processes

were like before being modified by the influence of the Europeans." (Reasons, Appellant=s

Record, vol. 5 at 793-794)

105. The 1645 Treaty is clearly about trade between the Mohawks and other Iroquois, the French

and the Algonquins and Huron, the latter two definitely situated in present-day Canada. While the

1645 Treaty postdates the date of first contact, the early date of the treaty and its consistency

with pre-contact Iroquois treaty-making make it a vital piece of evidence in respect of

Mohawk trading practices before contact. Dr. Venables describes the treaty council of the

1645 Treaty in his Report and further explained its importance in his examination-in-chief.

The trial judge relied upon it as important evidence of trade. (Venables, Report, Appellant=s

Record, vol. 2 at 215, Venables, Transcript, vol. 6 at 1052-1053, Respondent=s Record, at

75-76; McKeown J., Reasons, Appellant=s Record, vol.5 at 792-794)

106. Similarly, in Adams, this Court examined the contact and post-contact period 1603-1650's in

order to assess whether Mohawks were fishing in Lake St. Francis in the pre-contact period.

(Adams, supra, paras. 41, 44-45, Tab 9; McKeown J., Reasons, Appellant=s Record, vol. 5 at 774-

775)

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107. The majority of the Court of Appeal agreed that the trial judge had properly analysed the

evidence on trade:

[T]he trial judge properly considered the totality of the evidence of pre-contact trade before coming to his conclusion. Despite his finding that there was little direct evidence, he found, after applying the evidentiary principles established by the Supreme Court for aboriginal cases, that the evidence supported the right to duty-free trade. In R. v. Van der Peet, ... and Delgamuukw v. British Columbia, ... the Supreme Court recognized that it would be exceedingly difficult to produce conclusive evidence from pre-contact times of traditional practices of the community. Thus, the trial judge was entitled to rely on post-contact evidence that was directed at demonstrating that the Mohawks engaged in the pre-contact practice of trade across what is now the Canada - United States border.

In my view, the evidence relied on by the trial judge is sufficient to ground his finding of pre-contact trade.

Sexton J.A., Reasons, Appellant=s Record, vol. 5 at 854-855

108. As for the Appellant=s reliance upon the 1641 map, which he admonishes the trial judge for

overlooking (para. 85), a closer examination reveals why the trial judge chose to disregard it. As

was acknowledged by the Appellant's own expert witness, the "little-known Algonquin

people" which is shown as purportedly occupying the north shore of the St. Lawrence River

between Lake Ontario and Montreal in the 1641 map was so little known that (1) he did not

believe that this group had ever been referred to before the reference on this map; (2) he

did not know whether this group could be connected to any known bands after this map;

and (3) even his contention that this group was Algonquin was based upon inference by

process of elimination. (von Gernet, Transcript, vol. 25 at 4592-4594, Respondent=s

Record, at 185-187)

109. The trial judge relied upon oral history to find that the Mohawks used the area around

Akwesasne in pre-contact times. The Appellant=s allegation that the 1641 map is consistent with

Iroquois oral tradition misinterprets Dr. von Gernet=s evidence which related to the actions and

beliefs of what he refers to as Aa group of militant Mohawks@ in 1974.

von Gernet, Report, Appellant=s Record, vol. 3 at 539-540; McKeown J., Reasons, Appellant=s Record, vol. 5 at 784, 835

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110. The Appellant takes issue with the manner in which McKeown J. analysed and

interpreted an article written by Daniel Richter and included in the report of the Appellant=s

expert, von Gernet. Rather than being the Aprincipal@ evidence relied upon by the trial

judge, as the Appellant suggests, this is only one of the many documents upon which the

trial judge relied in order to come to his conclusion regarding trade. He found that it

reinforced his conclusion. The Court of Appeal concurred:

This article, which was submitted by the appellant=s expert witness, demonstrated that the Iroquois living in what is now the State of New York traded in copper which originated from the north shore of Lake Superior. Justice McKeown recognized that this was clear archaeological evidence of North-South trade across what is now the Canada - United States border. He concluded that the Richter article confirmed that trade was of vital importance to the Iroquois and that it was evidence of long distance trade.

Sexton J.A., Reasons, Appellant=s Record, vol. 5 at 856-857

111. The Appellant (para. 90) minimizes and misconstrues the importance of the entry in the diary of van den Bogaert. This account is of vital importance because it constitutes the earliest recorded European observations of Mohawk life, culture and traditions. The trade that van den Bogaert describes is of every-day, material goods and takes place between the Mohawks and women from another Iroquois nation, perhaps the Oneida. As Dr. Venables stated:

What I think is remarkable about that is that the trade is coming in this dried fish, but it also seems to be, from the evidence, that these women are unescorted, that they feel perfectly comfortable trading within the Confederacy without escort, without a police or military escort. There doesn't seem to be any apprehension on their part that this is unusual. When they show up, no one seems to find this remarkable, so I would suggest that this is one of the indications of what trade looked like prior to the arrival of the Europeans.

Venables, Transcript, vol. 6 at 1050, Respondent=s Record, at 73

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112. The nature of this evidence is very similar to the evidence of trade in Gladstone, also

provided through the journal of an early observer. In that case, this Court held the evidence

sufficient to establish the existence of an Aboriginal right to trade in fish. (Gladstone, supra, paras.

26-27, Tab 16)

113. The Appellant ( paras. 91-92) refers to the trial judge=s reasons in support of his assertion that the trial judge found "frailties" in the theory of Dr. Venables. This portion of the judgment must be read in context. The trial judge is not referring specifically to the evidence of Dr. Venables, but to inferences which had to be drawn from the Respondent's evidence on a particular issue C the issue of the extension of the Mohawk trading network in the 17th century. As this Court has cautioned, such inferences from the evidence are inherent in the subject matter before the Court in cases involving Aboriginal rights. Moreover, the Appellant does not mention that McKeown J., after noting this problem, added:

It is significant, however, that the warfare described by Dr. von Gernet was commercially motivated. The evidence demonstrates that one of the major concerns of the Mohawks during the 17th century was securing control over and expansion of trade territory and trade routes, particularly in the territory that is now on the Canadian side of the boundary. I find the Mohawks frequently travelled across what became the Canada/United States boundary in pursuit of trade.

Reasons, Appellant=s Record, vol.5 at 799-800 (emphasis added); Van der Peet,

supra, paras. 62,68, Tab 21

114. McKeown J. was relying upon both the testimony and expert report of Dr. Venables, and that

of Appellant's expert witness Dr. von Gernet who agreed that the warfare described was

"commercially motivated", in order to reach his conclusions on this issue. The trial judge

recognized that warfare was a legitimate mechanism for the Mohawks and other Iroquois to expand

their trading network and found that the Appellant=s expert witness committed the error of

concentrating too much on raiding activities. The Appellant makes the same error.

McKeown J., Reasons, Appellant=s Record, vol. 5 at 795, 798-799

115. The Appellant (para. 92) seeks to limit Dr. Venables= expertise to the 18th and 19th centuries.

This is not how Dr. Venables was qualified. He was qualified "as a cultural historian with particular

expertise on the history of the Iroquois Confederacy, colonial frontier history and the history of

Indian/European contact and relations during the colonial period and the era of the American

Revolution, with special emphasis on the 17th and 18th Centuries." The Appellant concurred in the

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qualification of Dr. Venables. While special emphasis was placed upon Dr. Venables'

expertise in the 17th and 18th centuries, his qualification as an expert was not limited to

that time period and included expertise on the Iroquois Confederacy pre-contact. Dr.

Venables' special expertise in the 17th century includes the time of early contact between

the Mohawks and the Europeans which the trial judge found was in 1609.

Venables, Transcript, vol. 6 at 940-952 (qualifications), 1016-1019 (the founding of the Iroquois Confederacy), Respondent=s Record, at 41-53, 55-58

116. The Appellant (para.94) objects to the trial judge's use of statements made by

Professor Johnston during cross-examination. These statements referred to general

Iroquois trading activities and practices and were made in response to a question by the

Appellant's counsel regarding Iroquois trading practices in the late 18th and early 19th

centuries. Professor Johnston was qualified as an historian, and his expertise included the

Iroquois of Grand River. Iroquois trading practices are within that expertise and it is

consistent with the evidentiary principles set out by this Court in Aboriginal rights cases for

McKeown J. to have relied upon Professor Johnston's statement as evidence of Aboriginal

practices post-contact which was directed at demonstrating which aspects of the Iroquois

society have their origins pre-contact. (Johnston, Transcript, vol. 15 at 2717-2718, vol. 16

at 2938, 2943, Respondent=s Record, at 140-141, 143)

117. The Appellant suggests that the trial judge=s conclusions on the issue of north-south trade are

inconsistent with the findings made by this Court in R. v. Adams. The issue is not inconsistency

between this case and Adams but rather the difference between the two cases. Adams concerned

fishing rights, not trading rights and this determined the historical record in that case. In any event,

the Courts below found Adams important and relevant on the issue of Mohawk use and occupation

of the territory in issue. Contrary to the Appellant=s analysis of Adams, this Court in fact found two

bases to support an Aboriginal right:

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This general picture, regardless of the uncertainty which arises because of the witnesses= conflicting characterizations of the Mohawks= control and use over this area from 1603 to 1632, supports the trial judge=s conclusion that the Mohawks have an aboriginal right to fish for food in Lake St. Francis. Either because reliance on the fish in the St. Lawrence River for food was a necessary part of their campaigns of war, or because the lands of this area constituted Mohawk hunting and fishing grounds, ...

Supra, para 45 (emphasis added), Tab 9

118. The Appellant states (para.96) that the expert testimony and the findings of fact in Adams are

consistent with the view expressed in this case by his witness, Dr. von Gernet. This contention is

incorrect as the trial judge concluded that on at least two key issues, Mohawk control of the upper

St. Lawrence valley prior to 1603 and Mohawk use of Lake St. Francis, Dr. von Gernet directly

contradicted the evidence of Dr. Trigger, the expert witness for Mr. Adams. Dr. von Gernet himself

acknowledged this contradiction. (McKeown J., Reasons, Appellant=s Record, vol. 5 at 780-781; von

Gernet, Transcript, vol. 23 at 4207-4210, 4220-4226, vol. 25 at 4575-4578, 4589-4591, Respondent=s

Record, at 161-164, 165-171, 176-179, 182-184)

119. The rejection of findings of fact which were based upon extensive historical evidence tested

during a three month trial in this case can not be justified by the suggestion of the Appellant that the

historical record is Aimpermanent@. Of course, historical research continues but, as Mr. Justice

Binnie concluded in R. v. Marshall, AThe reality, of course, is that the courts are handed disputes that

require for their resolution the finding of certain historical facts. The litigating parties cannot await

the possibility of a stable academic consensus. The judicial process must do as best it can.@

R. v.Marshall, [1999] 4 C.N.L.R., 161, para. 37, Tab 17

(F) Conclusion

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120. This Court concluded in Reference re: Secession of Québec, supra, para. 82, Tab 22:

...The Apromise@ of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments.

121. At trial the Respondent testified:

I see the Mohawk Nation as a proud nation. My citizenship in the Mohawk Nation, the Haudenosaunee, no one can ever take away. I am proud to have been an Ogahoumi [sic, Onkwehonwe]. I am proud to be living in this country, Canada, that our ancestors made alliances and stood with Great Britain through many wars, through tough times. Our elders still today will speak highly of the Crown, how we are allies, how we helped each other, how we helped them at the beginning of time.

Mitchell, Transcript, at 190, Respondent=s Record, at 11

122. In determining his actions on March 22, 1988, and in pleading and arguing his case, the

Respondent has reinforced and given shape to what this Court has referred to as the necessary

reconciliation of the Crown=s sovereignty with distinctive pre-existing Aboriginal societies.

123. In dismissing this Appeal, this Court would ensure that Canada reciprocates by

acknowledging that its supreme law now honours the pre-existence and continuance of Aboriginal

societies and delivers constitutional protection. As the Respondent testified: AWe need the court to

go back and say there is in existence an aboriginal right, there is in existence an historic right@.

Mitchell, Transcript, at 292, Respondent=s Record, at 40

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PART IV C ORDER SOUGHT

124. The Respondent submits that the appeal should be dismissed and the judgment of the

majority of the Federal Court of Appeal should be affirmed.

All of which is respectfully submitted this 9th day of April, 2000

Peter W. Hutchins

Anjali Choksi

Micha J. Menczer

Paul Williams

Counsel for the Respondent

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PART V C AUTHORITIES

Factum pages CASES Calder v. Attorney-General of B.C., [1973] S.C.R. 313 22,28 Chippewas of Sarnia Band v. Canada (Attorney General), [1999] O.J. No. 1406 (Q.L.) (Ont. S.C.J.) 23 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 10-11,15,19-20,28-

29,33 Easterbrook v. The King, [1931] S.C.R. 210 23 Francis v. The Queen, [1956] S.C.R. 618 29-30 Guerin v. The Queen, [1984] 2 S.C.R. 335 28-29 Kruger and Manuel v. The Queen, [1978] 1 S.C.R. 104 13 McCandless v. Diabo (1928), 25 F. (2d) 71 (3d Cir. C.A.) 18 Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570 10-11 R. v. Adams, [1996] 3 S.C.R. 101 16-17,28-29,30,34,37-

38 R. v. Arcand, [1989] 2 C.N.L.R. 110 (Alta.Q.B.) 17,22,24 R. v. Badger, [1996] 1 S.C.R. 771 20 R. v. Côté, [1996] 3 S.C.R. 139 16-17,28-29 R. v. Flett, [1989] 4 C.N.L.R. 128 (Man.Q.B.) 17,22,24 R. v. Flett, [1991] 1 C.N.L.R. 140 (Man.C.A.) 17,22 R. v. Gladstone, [1996] 2 S.C.R. 723 22,23,24-25,36

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Factum pages R. v. Jacques, [1996] 3 S.C.R. 312 21 R. v. Marshall, [1999] 4 C.N.L.R. 161 38 R. v. Sikyea, [1964] S.C.R. 642 17,24 R.v. Sikyea (1964), 43 D.L.R. (2d) 150 (N.W.T.C.A.) 17,24 R. v. Simmons, [1998] 2 S.C.R. 495 10,21 R. v. Sparrow, [1990] 1 S.C.R. 1075 12,14-15,16,20-22,23-

24,28-29 R. v. Van der Peet, [1996] 2 S.C.R. 507 10-11,12,13,19,23-

24,33,36 Reference re: Secession of Québec, [1998] 2 S.C.R. 217 15-16,38-39 Simon v. The Queen, [1985] 2 S.C.R. 387 29 The Queen v. George, [1966] S.C.R. 267 17,24 Watt v. Liebelt, [1999] 2 F.C. 455 18-19,22 LEGISLATION Akwesasne Residents Remission Order, SOR/91-412 27 An Act to Amend the Income Tax Act and the Income War Tax Act, S.C. 1949, chap. 25, s. 49 29-30 Ballet Shoes Remission Order, amendment, SI/80-155, C. Gaz. 1980. II. 3161 27 Customs Act, R.S.C. 1970, c. C-40, s. 6, s. 9, s. 18, s. 22 26-27,28 Customs Tariff, R.S.C. 1970, c. C-41, s.11, s. 20 27 Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.), s. 62, s. 66, s. 68, s. 77, s. 101 as am. 27

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Factum pages

Financial Administration Act, R.S.C. 1970, c. F-10, s. 17 27 Foreign Missions and International Organizations Act, S.C. 1991, c. C-41 19 Migratory Birds Convention Act, R.S.C. 1970, c. M-12 17,24 Migratory Birds Convention Act, S.C. 1994, c. 22 17-18 Protocol Between Canada and theUnited States of America Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, signed on December 14, 1995 17-18 Titanium Anode Remission Order No. 2, Amendment, SI/82-32, C. Gaz. 1982. II. 430 27 U.S. Immigration and Nationality Act, 8 U.S.C.S. ' 1359 18